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No. 96-1618NE

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of Nebraska.

*

Danny W. Crosby, * [PUBLISHED]

*

Appellant. *

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Submitted: September 13, 1996

 Filed: September 27, 1996

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Before FAGG, LAY, and MURPHY, Circuit Judges.

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PER CURIAM.

Danny W. Crosby appeals his conviction and sentence for conspiracy

to distribute and possess with intent to distribute methamphetamine.

Unlike Crosby, we conclude there was ample evidence to support his

conviction. Crosby's coconspirators testified that Crosby financed trips

to pick up methamphetamine, received a share of the drugs, and had

conversations with them about selling methamphetamine. Also, a drug

enforcement agent testified that the amounts of methamphetamine Crosby

possessed were consistent with distribution rather than personal use. The

witnesses' credibility was for the jury to decide. United States v.

Reeves, 85 F.3d 203, 206 (8th Cir. 1996). 

 Challenging his sentence, Crosby first argues the district court

erroneously attributed to him certain amounts of methamphetamine that his

coconspirators purchased without Crosby's knowledge or delivered to Crosby

for Crosby's personal use only. 
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The district court did not commit clear error, however, because there was

evidence showing Crosby reasonably should have foreseen the total amount

of drugs purchased, and Crosby sold the drugs he received rather than using

them himself. United States v. Flores, 73 F.3d 826, 833 (8th Cir.), cert.

denied, 116 S. Ct. 2568 (1996).

Next, Crosby argues the district court improperly increased Crosby's

base offense level for obstruction of justice. See U.S.S.G. § 3C1.1

(1995). According to Crosby, the district court simply relied on the

jury's rejection of his testimony without making an express finding that

Crosby had committed perjury. Contrary to Crosby's view, the sentencing

transcript shows the district court expressly found that Crosby had lied

about his involvement in the drug conspiracy. Further, the district court

documented each element of the alleged perjury in keeping with the Supreme

Court's requirement in United States v. Dunnigan, 507 U.S. 87, 95 (1993).

We thus conclude the district court's finding that Crosby had testified

falsely was properly based on the court's independent evaluation of

Crosby's trial testimony. See United States v. Turk, 21 F.3d 309, 313 (8th

Cir. 1994). We do recommend, however, that sentencing judges make clear

they have evaluated the defendant's testimony in a light most favorable to

the defendant. See United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.

1991) (citing § 3C1.1 n.1). 

Additionally, the record supports the district court's determination

that Crosby was more than a minimal or minor participant in the conspiracy,

see U.S.S.G. § 3B1.2(a)-(b), and Crosby is not entitled to a decrease in

his base offense level merely because his coconspirators were the

ringleaders and received less severe sentences. United States v.

Rodamaker, 56 F.3d 898 (8th Cir. 1995); see Reeves, 83 F.3d at 207. Also,

the district court did not abuse its discretion in refusing to grant Crosby

a downward departure based on Crosby's difficult family circumstances at

the time he joined the conspiracy. See Koon v. United States,
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116 S. Ct. 2035, 2046 (1996). The Sentencing Guidelines discourage

downward departures based on family ties and responsibilities, see U.S.S.G.

§ 5H1.6, and the district court properly determined Crosby's situation was

not exceptional enough to warrant a departure, especially since Crosby

continued his criminal conduct after his family situation improved, see

Koon, 116 S. Ct. at 2045.

Having rejected Crosby's contentions, we affirm his conviction and

sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.